St Louis Southwestern Ry Co v. Simpson

• Decision Date: 16 May 1932
• Docket Number: No. 674,674
• Citation: 76 L.Ed. 1152,286 U.S. 346,52 S.Ct. 520
• Parties: ST. LOUIS SOUTHWESTERN RY. CO. v. SIMPSON
• Court: U.S. Supreme Court

286 U.S. 346

52 S.Ct. 520

76 L.Ed. 1152

ST. LOUIS SOUTHWESTERN RY. CO.

v SIMPSON.

No. 674.

Argued April 25, 1932.

Decided May 16, 1932.

Messrs. Harold R. Small, of St. Louis, Mo., and A. L. Adams, of Jonesboro, Ark., for petitioner.

[Argument of Counsel from page 347 intentionally omitted] Mr. Frank Pace, of Little Rock, Ark., for respondent.

Mr. Justice CARDOZO delivered the opinion of the Court.

The administratrix of the estate of Simpson, an employee of the petitioner, brought this action under the Federal Employers' Liability Act (Act of April 22, 1908 c. 149, § 1, 35 Stat. 65, U. S. Code, title 45, § 51 (45 USCA § 51)) to recover damages for his death. She had a verdict in her favor in the circuit court of Prairie county, Ark., and the Supreme Court of the state affirmed. 43 S.W.(2d) 251. The case is here on certiorari. 285 U. S. 531, 52 S. Ct. 394, 76 L. Ed. —.

Simpson was the engineer of No. 775, an extra train engaged in interstate commerce. Before leaving Pine Bluff, Ark., he received a written train order, No. 104, notifying him to proceed south to the cross-over at McNeil, Ark., and there wait upon a siding until another train, No. 18, going north, had arrived and passed. On arriving at McNeil, Simpson took his train, consisting of 43 freight cars, upon the siding at the cross-over, but did not wait there. He had received at McNeil another order (train order No. 132) notifying him that another train (second 18) was to meet him farther south at Stamps. The conjecture is offered that he confused train No. 18 with second No. 18, though there is no dispute that to a railroad employee the description was entirely intelligible, trains of the same number being designated as first, second, third, and so forth. At all events, Simpson, instead of waiting at the siding, moved out upon the main track. About a mile away there was a head-on collision between his train and No. 18, in which he and others were killed.

The respondent admits, as she admitted on the trial, that the engineer was negligent, and rests her right to recover upon what is characterized as the doctrine of 'the last clear chance.' To bring that doctrine into play she relies upon these facts: At the end of the long train of 43 freight cars was a caboose in which the conductor and two brakemen rode. The brakemen say that, as the train left the siding, they remembered the first order, and asked the conductor whether any new ones contradicting it had come into his hands. Not hearing of any, they called out to apply the air brakes, and one of them offered to do so himself. This the conductor forbade, and said to bring him the written orders which were in the cupola of the caboose, so that he might read them again. This was done at once. While the orders were in the conductor's hands, and he was reading them again, the collision occurred.

The facts so summarized are insufficient to relieve the engineer from the sole responsibility for the casualty that resulted in his death. What was said by this Court in Davis v. Kennedy, 266 U. S. 147, 45 S. Ct. 33, 69 L. Ed. 212, might have been written of this case: 'It was the personal duty of the engineer positively to ascertain whether the other train had passed. His duty was primary as he had physical countrol of No. 4, and was managing its course. It seems to us a perversion of the statute to allow his representative to recover for an injury directly due to his failure to act * * * on the ground that possibly it might have been prevented if those in secondary relation to the movement had done more.' See, also, Unadilla Ry. Co. v. Caldine, 278 U. S. 139, 49 S. Ct. 91, 73 L. Ed. 224; Frese v. Chicago, Burlington & Quincy R. R. Co., 263 U. S. 1, 3, 44 S. Ct. 1, 68 L. Ed. 131; ...